When you separate or divorce, agreeing a practical plan for parenting your children is crucial. In our experience arrangements for children operate better when the parents agree things between themselves – without asking a judge to decide issues about:
- where the child will live
- the time each parent spends with the child
- the approach to be taken regarding the child’s education and medical care
A good child arrangements scheme or parenting plan should also seek to nail down questions about foreign holidays and the circumstances in which one parent can take a child abroad for extended periods.
So what kind of issues do we typically deal with at Gamlins Solicitors LLP when a separated or divorced parent wants to take a child abroad?
First, an intended foreign holiday might be objectionable because it may affect plans one parent has already made. Second, a parent might want to take a child abroad during term time or there may be some other reason for objecting to a foreign holiday. Third, alongside objections to a holiday there may be well-founded concerns that the ‘holiday’ may in fact be a cover for abduction. And finally we are sometimes asked to advise one parent when the other wants to permanently move abroad with a child.
We discuss these issues below.
Can My Ex Take My Child On A Foreign Holiday?
In England and Wales anyone with parental responsibility can usually veto a child’s trip abroad. In theory if you take a child abroad without the permission of everyone with parental responsibility – even for a short trip – you could be criminally liable for child abduction. (The child’s mother automatically has parental responsibility, and the father usually has parental responsibility if he’s either married to the child’s mother or listed on the birth certificate.) Contact us if you are unsure about who has parental responsibility for your child.
If there is a Child Arrangements Order in place specifying that the child lives with your ex-husband or wife, then they don’t need your permission to take the child abroad for up to 28 days. However:
- If there is no Child Arrangements Order;
- You have parental responsibility; and
- You object to the overseas trip
then your ex will have to ask the court’s permission to take your child abroad.
We find that in most cases that reach court, permission is given for the holiday. That’s why we always encourage some kind of mediation with your ex before going down the court application route. If you can get sufficient reassurance about the nature of the trip and you receive plenty of details – where your child will be staying, flight details, contact details and so on, then it may be that many of your fears about the trip can be allayed.
It’s also worth highlighting that, in the context of a holiday, it’s often not even practical to make a court application given the delays in the family court system. Your application may be listed for hearing after the holiday has taken place and the child has returned.
How Can I Make Sure My Ex Returns After The Holiday?
Of course, if you have concerns about your child’s safety or you suspect the holiday is in fact a ploy to remove your child permanently from the country, you should raise these with your solicitor. In some cases it may be necessary to involve the courts and seek an urgent hearing to obtain some kind of security from your ex about the child’s return.
The UK government is signed up to the 1980 Hague Convention, an international agreement which has clear rules and legal remedies to deal with the situation where a child has been moved abroad without the necessary permission (international child abduction). These rules are complex, and you should seek specialist advice if you suspect your child will not be returned after a holiday. In particular, you should seek advice if the country your child has been taken to is not one that is party to the Hague Convention.
My Ex Is Moving Abroad Permanently With My Child. Can I Stop Them?
If you have parental responsibility and you object to the move, then your ex will have to seek the court’s permission to move your child abroad permanently. These applications are inherently highly emotional, and the courts must engage in a delicate balancing of competing rights to arrive at a decision. In all cases the welfare of the child will be the most important consideration, and there is an extensive checklist the courts use to guide them in making these decisions. In applications for international relocation courts will consider issues like:
- The country your ex is relocating to. Are there existing family links?
- Where will the child go to go school?
- What type of accommodation will the child have?
- What sort of relationship will the ‘left behind’ parent be able to have with the child following relocation?
- What psychological impact will the move have on the child in terms of his or her relationship with the left behind parent?
In our experience if a parent with whom the child lives has clear plans, and he or she has made appropriate preparations, then international relocation applications are often difficult to successfully oppose. Sometimes a parent with objections might be well advised to use whatever time and resources are available to them in getting legal advice to ensure the best possible framework for future contact is put in place.
Summary
Whether your ex can take your child abroad depends on the factors we’ve discussed. Of course there is a big difference between taking a child on a short foreign holiday and permanently removing your child from the UK. But in either case getting the agreement of the other parent is key.
There will be times when one parent acts in bad faith and removes a child from England and Wales without the necessary permissions, and urgent legal action may be necessary in such circumstances. And inevitably there will be occasions when you and your ex will disagree about holiday or other travel arrangements for your children after you divorce.
Our family law team is often involved in disputes about taking children abroad, and we can help you reach a mutually acceptable arrangement with your ex, whether for a holiday or longer period. If you suspect your ex is about to take your child overseas without telling you and you have concerns that they may not return – or your child is already abroad without your consent – you should take urgent legal advice.
Contact Us
For advice on any of the issues we have raised please call us on 01492 860420 or contact the team online. Gamlins Solicitors LLP has a network of offices across North Wales, and we can arrange an in-person appointment at the office that’s most convenient for you or a remote appointment if you prefer.
